EEOC Provides Guidance to Employers Regarding The Use of Criminal/Background Checks

The Equal Employment Opportunity Commission (“EEOC”) has provided useful guidance to employers in issuing its April 25, 2012 “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act” (the “Guidance”). The Guidance contains the EEOC’s view on employers’ use of criminal arrest and conviction records in making employment decisions under Title VII of the Civil Rights Act of 1964, as amended (“Title VII”). This Guidance, along with a useful Q&A regarding the topic, can be found at www.eeoc.gov.

The Guidance reiterates the EEOC’s longstanding position that an employer’s consideration of an applicant’s criminal conduct in making hiring or other employment decisions may violate Title VII by causing a “disparate impact.” A “disparate impact” occurs when a neutral employment policy – such as excluding all applicants from employment consideration where they have engaged in any criminal conduct – negatively impacts some groups protected under Title VII more than others. An employer with a practice that is found to cause a “disparate impact” may defend by showing that its policy is job related and consistent with business necessity. Even if the employer can show job relation, it may still have to defend against a claim that an effective “alternative employment practice” is available that is less discriminating than the challenged policy.

The Guidance also notes the difference between arrests, which may not be considered in making employment decisions, and convictions, which provide “sufficient evidence” that a person engaged in criminal conduct and may be considered by employers. With respect to the former, the EEOC notes that while an employer may not consider arrests, if the employer conducts a factual investigation and determines that the conduct underlying the arrest actually occurred, then the employer can deny the applicant a position if the confirmed conduct makes the employee unfit for the position.

With regard to convictions, the EEOC recognizes that a conviction is “sufficient” evidence of criminal conduct. However, the EEOC recommends that an employer not ask about convictions on applications, and if inquiring about such convictions during the application or background check process, the employer should ensure that such inquiries are related to the specific position sought and consistent with business necessity.

The Guidance also provides additional information on background data and statistics. In short, the EEOC Guidance confirms that while employers may consider workers’ criminal records under certain circumstances, before denying employment to anyone with a record, they must consider all the facts and circumstances and may not automatically deny everyone with a record every job. Employers who intend to consider workers’ criminal records in making employment decisions, either during the application process or employment, are well advised to consult counsel to ensure they do not run afoul of any laws.